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out their knowing it, there is an increased risk of inadvertent infringement.49 An added disincentive to searching the patent literature is the danger that learning about an existing patent would increase the risk of being found to be a willful infringer. The patent literature may thus not be providing to the software world one of its traditional purposes—providing information about the evolving state of the art. Much the same could be said about the mismatch between patents and information inventions in general.

Third, although patents seem to have been quite successful in promoting investments in the development of innovative manufacturing and other industrial technologies and processes, it is possible that they will not be as successful in promoting innovation in the information economy. One concern is that the pace of innovation in information industries is so rapid, and the gears of the patent system are so slow, that patents may not promote innovation in information industries as well as they have done in the manufacturing economy. The market cycle for an information product is often quite short—18 months is not unusual; thus, a patent may well not issue until the product has become obsolete. If information inventions continue to fall within the scope of patents, then, at a minimum, the patent cycle-time needs to be improved significantly. Patent classification systems for information innovations may also be more difficult to develop and maintain in a way that will inform and contribute to the success of the fields they serve.

One final reason for concern is that developing and deploying software and systems may cease to be a cottage industry because of the need for access to cross-licensing agreements and the legal protection of large corporations. This in turn may have deleterious effects on the creativity of U.S. software and Internet industries.

49This is in contrast to the copyright framework, where infringement requires a demonstration that some (conscious or unconscious) plagiarism has occurred. For example, independent creation is a defense. Two people could write original but very similar stories (or programs) independently; both would be copyrightable, and neither would infringe upon the other, because the standard for copyright protection is originality, not novelty. Thus an author is not responsible for knowing the entire corpus of literature still within copyright so as not to infringe on it.

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